Citation Nr: 18155573 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-58 354 DATE: December 4, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include anxiety reaction with hysterical component, is granted. Service connection for asbestosis is denied. REMANDED Service connection for an acquired psychiatric disorder other than PTSD, to include anxiety reaction with hysterical component, is remanded. Service connection for PTSD is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from February 1969 to September 1970. 2. A final August 1971 rating decision denied service connection for anxiety reaction with hysterical component; evidence received since that time is new and raises a reasonable possibility of substantiating the claim. 3. During the pendency of this appeal, the Veteran has not been diagnosed with asbestosis or any other respiratory disability related to his claimed asbestos exposure. CONCLUSIONS OF LAW 1. Evidence received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety reaction with hysterical component, is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran submitted a claim for entitlement to service connection for colon cancer in July 2015. However, review of the record does not indicate that this claim has been acknowledged by the Regional Office (RO) at any time, to include via VCAA notice, entry into Veterans Appeals Control and Locator System (VACOLS), or a pertinent rating decision. As such, the Board does not have jurisdiction over this issue, and it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b). New and Material Evidence First, the Veteran is seeking to reopen a service connection claim for anxiety reaction with hysterical component. Considering the evidence of record, this appeal has been expanded to include all acquired psychiatric disorders other than PTSD, which has been adjudicated as a separate issue. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). To be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, this claim was denied in an August 1971 rating decision on the bases that the Veteran was not diagnosed with a psychiatric disorder during his active service, and that any current psychiatric disorder was not related to his active service. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the August 1971 rating decision became final. He subsequently requested to reopen this claim in February 2015. Thus, the Board must now determine whether new and material evidence has been received since the August 1971 rating decision to enable the reopening of the claim. Of greatest importance are various statements from the Veteran regarding his in-service symptoms and his subsequent treatment for psychiatric disorders. This evidence is new as it was not of record at the time of the final August 1971 rating decision. This evidence is also material because it raises a reasonable possibility of substantiating the claim. In August 1971, the appeal was denied upon the RO’s conclusion that the Veteran’s psychiatric disorder was not causally linked to service. However, the newly submitted lay testimony provides further details regarding the circumstances of the Veteran’s military service and the nature and onset of his psychiatric symptoms. Accordingly, new and material evidence has been received and the application to reopen the claim for service connection for an acquired psychiatric disorder other than PTSD, to include anxiety reaction with hysterical component, is granted. Service Connection Next the Veteran is pursuing service connection for asbestosis on a direct basis. As such, the Board will limit its analysis accordingly. Thus, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, the evidence does not demonstrate that the Veteran was diagnosed with this disorder at any time during the pendency of this appeal. Instead, extensive VA and private records are entirely silent for such a diagnosis or the treatment thereof. In the absence of a current disability, further inquiry into the in-service event or nexus elements is rendered moot and the appeal is thus denied. Briefly, the Board acknowledges a February 2016 VA treatment record noting the Veteran’s history of lymphoma as accompanied by lung nodules. However, a subsequent note entered that same month indicates that this report was made in error, as the Veteran had a history of colon cancer, not lymphoma. Additionally, “spots on lungs [were] also noted in error.” As such, this notation does not stand as competent evidence of asbestosis or a current and related disorder. The Board has also considered the Veteran’s contention that he has asbestosis. However, he lacks the requisite medical training and expertise to competently diagnose his observable symptoms. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, in the absence of competent medical evidence speaking to the existence of the claimed disorder, a current disability cannot be found. Briefly, the Board acknowledges that the Veteran has not undergone VA examination for the claimed disability. However, an examination is not warranted absent competent evidence of a current disability or persistent or recurrent symptoms of a disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the record does not contain any such evidence, an examination is not warranted at this time. In the absence of a current disability, the appeal is hereby denied. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the psychiatric and TDIU appeals. First, the Veteran has not yet been afforded VA examination in connection with his psychiatric appeals. McLendon, 20 Vet. App. at 83. However, the record contains competent evidence of a current disorder and a possible etiological link to service, to include VA treatment records and the Veteran’s own lay testimony. As such, a remand is now warranted such that an examination, inclusive of a clear diagnosis and an etiological opinion, may be obtained. Further, determination of the psychiatric appeals will directly impact the TDIU appeal, such that the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, remand of the above appeals necessitates remand of the TDIU claim, as well, such that the full scope of the Veteran’s service-connected disabilities may be considered in analyzing his entitlement. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate examination to determine the nature of his claimed psychiatric disorder and its possible relationship to service. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to offer medical opinions as to: a. Whether the Veteran has demonstrated a psychiatric disorder during the pendency of this appeal. A diagnosis of PTSD must be offered in accordance with VA regulations; b. Whether it is at least as likely as not that the psychiatric disorder began in service, was caused by service, or is otherwise related to service, including the circumstances of the Veteran’s service in Korea. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 2. If appropriate, refer the claim to VA’s Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel